“Only 2 of the 15 complaints were found to be substantiated” February 2, 2014

The CSW report on Boulder recommends that the relevant office (ODH) explains what a finding or not finding on a complaint means. I have seen many remarks that suggest that 13 of the 15 complaints described by the CSW report were judged to be baseless. Such a conclusion does not follow at all. I said something about this in comments on the new apps site, but it seems that the issue should be addressed in a more general post. I cannot possibly speak about procedures at Boulder, but I saw a number of cases when I was in faculty governance and when I filed my own complaints. I am also going to suppose that the complaints were based on Title 7. Of course, there may not all have been, but I think the problems I’m describing are the same.

We should also remember that filing a complaint is not fun, and it looks like a good way to make enemies in the profession. Further, it is not thought to be an easy way to get one’s own back. Getting a finding against someone above one on the academic ladder can be very hard.

A disclaimer: I may be wrong at points, but my intention is principally to indicate that a “no finding” result need not be a finding that a complaint is baseless or frivolous. Things are very much more complicated.

First of all, the process often – perhaps always – goes through the hands of lawyers. We – faculty and students – are usually not legally trained. This is important because one’s complaint has to meet some demands that are legal in nature. For example, women form a protected class; that’s why women, and not fit young heterosexual white men, file complaints with the equal treatment office. But this means that one has to show that the egregious behavior is targeting one as a woman. It is not enough that one’s reputation is being trashed, for example; they have to be after you because you are a woman for the claim to be accepted. Being a jerk is not illegal. So really egregious behavior can be judged as irrelevant. No finding is made.

Secondly, at least in many cases, one has to show one has been harmed. That means that, e.g., an unjust decision on tenure has to result in one’s not getting tenure. Similarly for other unjust decisions about salary, leave, etc. A dean or provost can reverse the unjust decision and no harm is done, it is said. If the option is finding for the complainant or no finding, this may well go into the no finding category.

One is well advised to get a lawyer, but even lawyers acting on a contingency basis will want something up front. In Houston $25K is not unusual. That means a lot of people will have to complain without legal counsel. I think those one complains against may get legal counsel. It is not a level playing field.

But supposing a complaint is taken up, a lawyer has been hired, and it is clear the aggrieved won’t go away. They university may well not want the relevant pictures or emails or whatever to enter into a legal process outside of the university. And going to the federal EEOC is not really appealing to anyone, at least anyone I’ve known. So the university may try to settle with the complainant, and succeed in doing so. Here again, the bad actor is not found against, and I’d expect that instead a finding of “no finding” is official.

Let me say again that my intention here is just to illustrate some of the complications. Deciding a charge against title 7 is not at all like grading a paper. Just as a “not guilty” verdict does not mean the defendant was innocent, so a “no finding” conclusion does not mean there wasn’t very serious wrong-doing being reported.

On a note from a reader:

I may have been wrong or at least misleading. I said that in the case of an unjust decision, such as a tenure decision, the finding of “no finding” might happen if the decision is overturned. I didn’t mean to say that the legality of the unjust decision might change. In any case, I do want to clarify the situation. An informed reader has commented:

If a department votes to deny tenure, tenure is not ipso factodenied, and if a dean overturns the department, the issue may be moot but the US government doesn’t think so. The legal question is whether an act of discrimination took place on a particular date. Subsequent acts may be considered, but only pursuant to the question.

There’s some worry on others’ part that my comment might discourage others from seeking legal redress. Even more important, I think, is that filing adds to a paper trail that you may well need if things get worse. I would in fact go to your office of affirmative action right away and file a complaint. My university in fact stresses going through all the proper channels, which means that in our situation you don’t want to go to the gov’t right away. This is something you should ask about.

My information about what happens in the case of an unjust decision – the example I used was tenure – was actually based on my own experience going up for promotion to full professor. The college committee denied my request; every sentence in the explanation they provided was false. For example, it said my publication record had gotten worse, but in fact it had gotten better. It was completely remarkable; since this didn’t happen to the men denied that year, and since I’m a member of a protected class, I had a very good case for saying I was receiving unequal treatment. But the university legal department said that I had to wait to see if actual harm resulted. And indeed the provost overturned it.